The Common and Criminal Law of UK

The general rule is that criminal law prohibits the doing of harm but there is no liability in criminal law for omissions. In English and welsh criminal law, there are certain exceptions to that rule if there is a duty to act, such a duty can arise in various ways upon a person, and failure to so act can lead to criminal liability. A duty to act is an onerous burden that is imposed by statute in only a narrow range of circumstances, generally requiring action in situations where inaction would be unreasonable. For example, section 170(4) of the Road Traffic Act 1988 imposes a duty upon a driver involved in an accident to report it to the police or provide his details to other parties involved. Arguments to support and counterarguments will be critically reviewed during the course of this essay to conclude that there is no place for a duty of easy rescue in English and welsh criminal law.

In English and welsh criminal law, there is generally no legal duty to rescue someone in peril. Liability for a failure to act will only arise when a legal duty to act is recognized. Examples are quoted as follows: The parties concerned have a special relationship that creates a duty of care among them, for example, between parents and child; the person concerned is the one who creates a harmful situation; The person is under a contractual duty to save, for example, railway crossing keeper who is on duty; The person who has voluntarily assumed responsibility of another; or the duty to act is explicitly specified in statue, for example, a woman should not wilfully omit her infant to avoid causing the death of her child.

This common law duty to act was established because it is believed that coercive powers of law should only be invoked in response to positive actions, or else the law would become overly burdensome and intrusive to individual freedom. Also, liability for omissions entails the possibility of numerous liabilities wherever there is no particular reason for attributing responsibility to one rather than another person. Moreover, most of the failure to act is not that serious to the extent that criminalization is needed.

In some countries like France which is practicing civil law system, however, it is stipulated that one shall be punished by imprisonment if someone “abstains voluntarily from giving such aid to a person in peril that he would have been able to give him without risk to himself or to third persons by his personal action or by calling for help” In Germany law system there is a provision that also specifies “a citizen is obliged to provide help in case of accident or general danger if necessary”.

In my opinion, common law is not too lenient, and I am in support of the current law in the UK that a person should only be criminally liable if there is a duty of care involved. As said by legal scholar Glanville Williams, “the word crime is expressed with the implications of action, it is a breach of the principle of legality to convict people of them when they have not acted, and it is unfair to convict non-doers of acts under the names of doers”. If we follow Germany’s practice, people would help out of the fear of being prosecuted. The law then takes on the role of forcing people to act instead of prohibiting undesirable acts, and this would be intrusive to one of mankind’s greatest values, free will.